Through the standing doctrine, the U.S. Supreme Court has taken a new step toward severely limiting the effective enforcement of privacy laws. The recent Supreme Court decision, TransUnion v. Ramirez (U.S. June 25, 2021) revisits the issue of standing and privacy harms under the Fair Credit Reporting Act (FCRA) that began with Spokeo v. Robins, 132 S. Ct. 1441 (2012). In TransUnion, a group of plaintiffs sued TransUnion under FCRA for falsely labeling them as potential terrorists in their credit reports. The Court concluded that only some plaintiffs had standing – those whose credit reports were disseminated. Plaintiffs whose credit reports weren’t disseminated lacked a “concrete” injury and accordingly lacked standing – even though Congress explicitly granted them a private right of action to sue for violations like this and even though a jury had found that TransUnion was at fault.
In this essay, Professors Daniel J. Solove and Danielle Keats Citron engage in an extensive critique of the TransUnion case. They contend that existing standing doctrine incorrectly requires concrete harm. For most of U.S. history, standing required only an infringement on rights. Moreover, when assessing harm, the Court has a crabbed and inadequate understanding of privacy harms. Additionally, allowing courts to nullify private rights of action in federal privacy laws is a usurpation of legislative power that upends the compromises and balances that Congress establishes in laws. Private rights of action are essential enforcement mechanisms.
GW Paper Series
101 Boston University Law Review Online 62 (2021)